DEQ action called ‘completely unnecessary’

by Paul W. Jackson

By declaring Lake Erie “impaired,” the Michigan DEQ has potentially opened the door to EPA interference, Farm Bureau says.

An action by the Michigan Department of Environmental Quality (DEQ) may invite the EPA to take control of the Western Lake Erie Basin watershed.

The DEQ on Thursday listed Lake Erie as “impaired” because of “extensive algal blooms caused by excessive levels of phosphorous,” an action opposed by Michigan Farm Bureau (MFB).

“It’s completely unnecessary,” said Laura Campbell, manager of MFB’s Agriculture Ecology Department. “We already have a plan for phosphorous reduction in Lake Erie, signed by Governors Snyder and Kasich (Ohio) and Premier Wynne (Ontario). That plan gives DEQ the direction it needs to take action on water quality improvement without this additional layer of bureaucracy.”

The plan to which Campbell refers is the 2015 collaborative agreement between Michigan, Ohio and Ontario, in which all three parties agreed to solve the Lake Erie algae problem together.

Opening the door

Simply listing the lake as impaired isn’t the problem, though. The listing positions the state, its farmers and other industries for punishment for failing to meet impossible goals which cannot be controlled unilaterally.

The impairment listing for “other indigenous aquatic life based on frequency and severity of algal blooms” sets a goal that, if not achieved, would invite the EPA to set a watershed-wide Total Maximum Daily Load (TMDL) requirement, as it did the Chesapeake Bay watershed, an action that remains tied up in court.

The DEQ had no choice but to make the designation under terms of the Clean Water Act, said Mike Alexander, environmental manager with the DEQ’s Water Resources Division.

“As part of the federal Clean Water Act, we’re required to evaluate surface water for two years,” he said. “We’ve evaluated Lake Erie weekly since 2012, and we believe the lake is not what it should be. The Clean Water Act requires us to do that listing.”

That could be a wrong interpretation of the Act, Campbell said.

“We’re not sure states have the authority under the Clean Water Act to designate this kind of impairment in a multi-jurisdictional water,” she said. “We believe Congress’s intent was that if a state cannot control the whole water body for certain pollutants, it should not make the listing. And that’s the point here. No matter what Michigan does, it cannot control what Ohio or Ontario does. We’ve always known that if the EPA is dissatisfied with how Michigan is managing its water resources, it can override us. It’s a threat that’s been hanging over our heads, and that threat is more palpable now.”

Michigan DEQ officials, however, apparently don’t see the EPA as a threat the way farmers do, especially in light of a recent U.S. House committee’s report that found EPA used unethical and allegedly illegal tactics while trying to push through its Waters of the U.S. rules.

“The EPA was involved with this (Lake Erie situation) in our attempt to have a two-step process,” Alexander said. “The first step was to figure out what the problem was, and the second step was to solve the problem. The solution was a 35 to 40 percent reduction in phosphorous.” That goal, Alexander admits, is close to being accomplished already in the River Raisin. Voluntary efforts by farmers who follow nutrient management guidelines in the GAAMPS (generally accepted agriculture management practices) and are enrolled in the state’s unique and voluntary program called MAEAP (Michigan agriculture environmental assurance program) are making a difference.

“We believe improvements have been accomplished because of those voluntary actions,” Alexander said.

However, under the new state of reality in which the lake is listed as impaired under the Clean Water Act, Michigan’s voluntary efforts amount to nothing if Ohio and Ontario, both of which also contribute to Lake Erie’s impairment, don’t achieve their goals.

“We can’t control all the waters that feed into Lake Erie, let alone the climate and weather-related influences that spread across the entire watershed,” Campbell said. “Under this listing, if we do our part and the others don’t meet their goals, the EPA will do what it did in the Chesapeake Bay, which is to take control of the entire U.S. portion of the watershed with a TMDL requirement. However, even if it did that, the EPA has no control over Ontario’s portion, so the action does little to control the pollution except put further heavy-handed regulations on farmers and businesses in Michigan.”

While Alexander didn’t necessarily agree that the EPA will hinder Michigan’s ongoing solutions, he said the listing will help free up federal funds for the cleanup effort.

“When we raise the priority of the situation, it helps us get funds,” he said.

Campbell said those funds are available through the Clean Water Act whether the lake is on an impaired list or not.

“There may be a change in Lake Erie priority,” she said, “but it’s all still the same pot of money. The listing doesn’t change that.”

Besides, she said, comparing Ohio’s experience with the EPA after its government declared the lake impaired for drinking water is an entirely different situation.

“Ohio’s impairment deals only with 100 yards off shore, and our impairment listing covers all of Michigan’s jurisdictional portion of the lake,” Campbell said. “If we really want a reference to what EPA could do, look at the Chesapeake Bay, where EPA imposed TMDL regulations across the entire watershed and seriously damaged farmers’ ability to farm.”

Voluntary efforts work

Whatever farmers’ suspicions about EPA’s motives or actions may be, the Michigan Department of Agriculture and Rural Development (MDARD) is committed to the voluntary, successful efforts of farmers, according to MDARD Director Jamie Clover Adams.

“When we examined our key metrics, we found that in the Western Lake Erie Basin of Michigan, last year our farmers added 35,000 more acres in a nutrient management plan,” she said. “We have 77 more MAEAP-verified farms in the basin and will continue to get more farmers involved.”

Those efforts are why Michigan Farm Bureau wants to be sure the general public knows farmers aren’t the sole source of nutrients that lead to an algal bloom.

“The algal bloom has been around for a long time, but in the last five to seven years, it’s really come on,” Clover Adams said. “What has happened? There a fewer animals in Michigan to contribute to nutrient runoff, and there are no new crops that require a lot more phosphorous. We need to know what’s changed to know what we need to change.”

Keep in mind, too, she said, that municipal water systems that discharge into water that leads to Lake Erie produce a tremendous amount of water, although, she said, Detroit in particular has met its phosphorous discharge permitting boundaries.

And while farmers will not point the finger at other contributors to the problem, they want to be sure they aren’t made the scapegoat by environmental groups whose agenda is to eliminate modern agriculture.

“We will vigorously oppose efforts that presume farmers as causing pollution of public or private water supplies near agricultural operations or require additional environmental permits regarding agricultural nonpoint source pollution,” Campbell wrote to the DEQ on behalf of Michigan Farm Bureau. “We support the continued MAEAP verification of all farms and recognize Michigan law that offers MAEAP-verified farms a presumption of meeting the obligations for watershed pollutant loading determinations.

“It is vital for the continued growth of our industry to provide flexibility without additional mandated regulatory approaches. We believe retaining our state’s decision making is superior to a path that is directed by federal agencies that provide little to no additional value.”

Clover Adams agreed that MAEAP is a vital part of the Lake Erie solution.

“MAEAP is a significant program that should remain the cornerstone of what we do,” she said. “We have data to show that what we do in MAEAP works. Unfortunately, we believe the DEQ’s hands are tied by the Clean Water Act and had no choice but to list the lake as impaired.”

While Farm Bureau disagrees with that position, it is committed to helping bolster MAEAP, and thus help farmers help the watershed, Campbell said.

“Farmers are working hard to proactively protect water quality,” she said. “It’s why we oppose the EPA’s potential involvement. Voluntary efforts are working and should be allowed to continue to work. Heavy-handed government will not help.”

Clover Adams pledged to keep MAEAP as the main program farmers can use to help.

“The Governor has talked about putting our foot on the gas for progress in any number of areas, and that’s what we intend to do with MAEAP,” she said. “Our new MAEAP database will tell the story of what we’ve done and where we need to go. If the science we need can be moved along and tell us what we need to do, farmers will do it. Knowing that, and knowing we don’t agree with the EPA coming in, I have confidence we will get where we want to go.”

Everyone wants clean water, Campbell said, and farmers are at the top of that list. The argument then boils down to how to get that clean water: by voluntary, proven efforts, or the heavy hand of a massive and largely out-of-control bureaucracy.

“Our plan is working, and EPA involvement won’t help,” she said. “We don’t want farmers to lose faith in MAEAP the same way they’ve lost faith in the EPA.”